Farmer v. Mabus, J90-0206(B).

• Decision Date: 06 March 1991
• Docket Number: No. J90-0206(B).,J90-0206(B).
• Citation: 757 F. Supp. 1462
• Parties: Arthur J. FARMER, Plaintiff, v. Ray MABUS, as Governor of the State of Mississippi, Defendant.
• Court: U.S. District Court — Southern District of Mississippi

757 F. Supp. 1462

Arthur J. FARMER, Plaintiff, v. Ray MABUS, as Governor of the State of Mississippi, Defendant.

No. J90-0206(B).

United States District Court, S.D. Mississippi, Jackson Division.

March 6, 1991.

COPYRIGHT MATERIAL OMITTED

Dennis L. Horn, Shirley Payne, Horn and Payne, Jackson, Miss., for plaintiff.

Stephen J. Kirchmayr, Office of Atty. Gen., Jackson, Miss., for defendant.

MEMORANDUM OPINION AND ORDER

BARBOUR, Chief Judge.

This cause is before the Court, pursuant to Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure, on the Motion of Defendant, Governor Ray Mabus, for Summary Judgment, or in the Alternative, to Dismiss for failure to state a claim upon which relief can be granted. Plaintiff, Arthur J. Farmer, has filed a Cross-Motion for Summary Judgment. Both parties have responded to the Motions. In addition to the responses and memoranda of authorities submitted in connection with the instant Motions, the Court has also considered evidence submitted at previous hearings in this matter as well as stipulations that have been entered in the record of this case. Both parties have agreed that the case should be decided on the Cross-Motions for Summary Judgment without further evidentiary hearings. On that basis, the Court now renders the following findings of fact and conclusions of law.

I. FACTS AND PROCEDURAL HISTORY

Upon his assumption of the governorship of the State of Mississippi in 1988, Defendant Ray Mabus duly appointed, and the Mississippi Senate confirmed, Plaintiff Arthur J. Farmer to serve as the adjutant general of the National Guard for the State of Mississippi. As adjutant general, Farmer was designated the executive head of the state military department and was subordinate only to the governor, as commander in chief, in matters pertaining thereto. The adjutant general is vested with certain duties and authority relating to the National Guard pursuant to both state and federal law.

In January of 1990, the news media in Mississippi published several stories concerning Farmer's purchase of a partial ownership interest in property adjacent to the north gate of Camp Shelby, a National Guard training camp that is located in Forrest County, Mississippi. According to the media accounts, a possible expansion of Camp Shelby was under consideration at the time that the land purchase by Farmer and two other National Guard members was made. Following the publication of these news accounts, Mabus issued a written reprimand to Farmer concerning the purchase of the property and directed Farmer to immediately divest himself of any interest in such property. Mabus additionally informed Farmer that a request had been forwarded to the Mississippi Ethics Commission to thoroughly investigate this matter. Following his receipt of Mabus' letter, Farmer divested himself of his interest in the property.

On February 9, 1990, Mabus issued a written directive to Farmer that stated:

In light of recent developments, I have determined that it is both necessary and appropriate for me to exercise my responsibilities as Commander-in-Chief of the Military Department of the State of Mississippi by assuming direct control over the day-to-day operations of the Department. To that end, I have today directed Brigadier General Denver Brackeen to assume an added duty as my Special Advisor for Military Affairs. As such, General Brackeen will be responsible for advising me with respect to all aspects of the functioning of the Military Department of the State of Mississippi. Thus, I have assumed direct operational control of the Mississippi National Guard. My advisor and representative is General Brackeen.

I am hereby directing you, on a daily basis, to coordinate all aspects of your current duties as Adjutant General through my office, including but not limited to those responsibilities of the Adjutant General set out in section 33-3-11, Mississippi Code of 1972. I also hereby direct you to submit a report to my office each Thursday afternoon, setting out your proposed activities as Adjutant General for the following week. However, you are not to undertake any of those activities until you receive written approval from me. In addition, each Monday morning you are to submit a report to my office, accounting for the previous week. These reports are in addition to the day-to-day coordination with my office referenced above.

On February 12, 1990, Lieutenant General John B. Conaway, Chief of the National Guard Bureau, an auxiliary of the Departments of the Army and the Air Force that is directed to oversee compliance with federal National Guard regulations, issued a memorandum concerning the Mississippi National Guard, wherein he stated:

Enclosed is a letter from Governor Ray Mabus of Mississippi indicating that he intends to assume direct operational control over the Military Department of the State of Mississippi, and that his advisor and representative in that regard will be Brigadier General Denver Brackeen. This has been accomplished.

Governor Mabus has asked that the National Guard Bureau work directly with his office an National Guard matters. This action is within the authority of the Governor, as Commander-in-Chief of the Mississippi National Guard.

Thereafter, on March 5, 1990, Mabus ordered Farmer to delegate to General Brackeen "all of your authority under 32 USC 708 with respect to technician matters and authority to sign documents concerning such matters.... In addition, I order you to designate Brigadier General Brackeen as your representative to provide the briefing required by certain National Guard regulations." The governor conferred with the National Guard Bureau prior to issuing this order, and the National Guard Bureau not only approved of this action, but also forwarded to the governor suggested drafts for the order. By letter dated March 13, 1990, Farmer complied with Mabus' order and delegated all of the requested duties to General Brackeen. Farmer specifically provided in his letter of delegation that "this delegation of authority shall remain effective until specifically revoked in writing by me."¹ Following this exchange of letters, Mabus then ordered Farmer to vacate his office located at the Military Department and report for work at the Mississippi Emergency Management Agency, which was located in a separate state office building. In addition, Farmer was instructed to terminate all flight duties and to return the state automobile he had used in connection with National Guard activities.

On April 19, 1990, Farmer attempted to reassert his authority as adjutant general over the Mississippi National Guard. On that date, Farmer issued the following statement:

This is to inform all concerned that on 19 April 1990, I, Major General Arthur J. Farmer, am reasserting my authority as The Adjutant General, Mississippi National Guard.... Based on the advice of independent legal counsel, it is obvious to me that because of the responsibilities incumbent upon me as Adjutant General, I should either reassert my authority or resign. Because of my love for the Mississippi National Guard and my respect for the Mississippi Senate, which confirmed me and invested me with the authority as Adjutant General, I have chosen to reassert my full authority and to perform all my duties as Adjutant General of the State of Mississippi.

To allow someone else to perform my duties while I remain legally responsible for those actions under both State and Federal law jeopardizes both the integrity of Federal funding for the Mississippi National Guard and my position as Adjutant General.

I am revoking any prior delegations of authority made by me, and I will perform the duties and obligations imposed upon me by State and Federal law. Not to reassert my authority as Adjutant General would be in dereliction of these duties.

On that date Farmer also attempted to move his office back to the Military Department. However, Farmer was ordered to vacate the premises by Lieutenant Governor Brad Dye, acting on behalf of Mabus who was out of the state at that time. When Farmer refused to vacate the building, he was escorted from the premises by members of the Mississippi Highway Patrol. It is asserted that subsequent to the events of April 16, 1990, Farmer gave direct orders to Brigadier General Brackeen to cease operating as the officer in charge of the Mississippi National Guard and that General Brackeen refused to obey the direct orders of Farmer.

On May 1, 1990, Farmer filed the instant lawsuit. In his complaint, Farmer asserts that Mabus has stripped him of his authority as adjutant general to direct the day-to-day operations of the Mississippi National Guard. Such acts, Farmer contends, are tantamount to his removal from office. Since Mabus has failed to remove the adjutant general from office in the manner prescribed by Mississippi law, Farmer asserts that he has been deprived of the property interest he holds in his position as adjutant general of the Mississippi National Guard without due process of law as guaranteed by the Mississippi Constitution and the fourteenth amendment to the United States Constitution. Further, Farmer contends that Mabus' orders directing him to delegate certain of his duties as adjutant general are in violation of both state and federal statutes and regulations that require those duties to be carried out by the duly appointed adjutant general of the Mississippi National Guard. In the complaint, Farmer asks this Court to issue a declaratory judgment that the adjutant general, until he is removed from office in a manner prescribed by law, possesses the authority and duty under applicable federal and state law to oversee the day-to-day operations and all specific operations of the Mississippi National Guard. Farmer further prays for the issuance by the Court of an injunction directing Mabus not to impede Farmer's performance of his duties. Shortly after the filing of the complaint,...